United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
WEBSTER UNITED STATES MAGISTRATE JUDGE.
matter is before the court on a motion to dismiss by
Defendants Robin E. Remsburg, Franklin D. Gilliam, and the
University of North Carolina at Greensboro. (See
Docket Entry 13.) Plaintiff Joseph Emanuelson has responded
to the motion. (See Docket Entry 17.) For the
reasons that follow, the undersigned will recommend that
Defendants' motion be granted in part and denied in part.
action arises from Plaintiffs dismissal from the University
of North Carolina at Greensboro's ("UNCG")
graduate nursing program ("the program"). (See
generally, Compl., Docket Entry 1.) Plaintiff enrolled
at UNCG in August, 2013 seeking a Master's of Science in
Nursing with a concentration in nurse anesthesia, a program
consisting of both academic and practicum courses.
(Id. ¶ 9, 11). The clinically-based practicum
courses were performed through Raleigh School of Nurse
Anesthesia ("RSNA") and supervised by clinical
preceptors. (Id. ¶ 11-12.) During his
enrollment, Plaintiff reported multiple incidents of
harassment as well as incidents of physical assault and
unwanted contact by his preceptors. (Id. ¶¶
12, 25- 27.) Also during his enrollment, Plaintiffs
physicians diagnosed him first with anxiety and major
depression and later with generalized anxiety disorder,
obsessive compulsive disorder, and major depressive disorder.
(Id. ¶¶ 13, 17, 24.) Plaintiffs physicians
wrote letters to UNCG and RSNA indicating these diagnoses.
(Id.) One Physician also indicated that an April,
2014 incident of harassment and physical assault by a
preceptor had been "traumatic" to Plaintiff, and
that such incidents could "exacerbate [Plaintiffs]
anxiety and affect attention and focus consequently."
(Id. ¶ 12, 17.) In June 2014, Plaintiff
registered with UNCG's Office of Accessibility, Resources
and Sendees ("OARS"), which granted Plaintiff
accommodations for his disability in the academic setting.
(Id. ¶ 19.) Specifically, OARS granted
Plaintiff additional time and a quiet environment for
testing. (Id.) Despite Plaintiffs objections,
neither UNCG nor RSNA granted Plaintiff accommodations for
his clinical practicum courses. (Id.) On July 28,
2014, Plaintiff, UNCG, and RSNA entered into a "learning
contract" that outlined how reports of mistreatment or
abuse were to be handled. (Id. ¶¶ 20-21.)
In pertinent part, the learning contract provided,
Any concerns of mistreatment or abuse by a preceptor will be
reported immediately by phone to the RSNA faculty member
overseeing the clinical experience. The faculty member will
remove the student from the supervision of the clinical
preceptor and reassign to another preceptor. The RSNA
Associate Director of Clinical Education will follow up with
the clinical agency regarding the alleged treatment/abuse and
submit a report to the RSNA Director and UNCG Associate Dean
for Graduate Studies.
(Id. ¶ 20-21.)
4, 2015, Plaintiff completed the academic coursework for the
program. (Id. ¶ 28.) On September 18, 2015,
Plaintiff completed a rotation of "independent
practice" at Rex Hospital; he received satisfactory
marks from all supervising preceptors there during that
rotation. (Id. ¶ 19.) To earn his degree, he
needed to compete eight more weeks of clinical coursework.
(Id. ¶ 56.)
October 8, 2015, preceptor Julie Brewer sent Plaintiff home
from a clinical practicum at WakeMed for alleged "poor
performance." (Id. ¶ 30.) Earlier that
year, around May 1, 2015, WakeMed preceptor Laura Smith had
informed Plaintiff that preceptor Brewer had made disparaging
remarks about Plaintiffs capabilities as a nurse and student.
(Id. ¶ 27, 36.) Plaintiff had reported this
incident to RSNA and requested reassignment to another
preceptor, but UNCG staff denied the request. (Id.)
On October 11, 2015, several days after preceptor Brewer sent
Plaintiff home, "Plaintiff met with clinical preceptors
and RSNA faculty at WakeMed Hospital. ... At the meeting,
Plaintiff was accused of falsifying medical records for a
patient. Plaintiff did not return to the clinical site
pending an investigation of the matter." (Id.
¶ 32.) Defendant Robin E. Remsburg, Dean of the
University of North Carolina at Greensboro School of Nursing
("Defendant Remsburg"), conducted an investigation
pursuant to UNCG School of Nursing Policy. (Id.)
On . . . October 20, 2015, [preceptor] Brewer wrote the
evaluation for Plaintiff regarding the October 8, 2015
incident for which [Plaintiff] was sent home. . . . On . . .
October 29, 2015, [UNCG] completed its investigation of an
alleged unsafe practice by Plaintiff at RSNA. At the time,
the results of the investigation were not disclosed to
Plaintiff. . . . On . . . November 3, 2015, Plaintiff met
with RSNA faculty and the Dean of the [UNCG] School of
Nursing to discuss the alleged unsafe practice. . . . On . .
. November 5, 2015, preceptor Laura Smith submitted a
statement to [UNCG] outlining what she perceived as
mistreatment of Plaintiff regarding the allegations of an
(Id. ¶¶ 33-36.)
November 10, 2015, Defendant Remsburg notified Plaintiff that
he was dismissed from the program for unsafe practice.
(Id. ¶ 37.) On November 11, 2015, Plaintiff
appealed his dismissal to the UNCG School of Nursing Appeals
Committee ("Appeals Committee"). (Id.
¶ 38.) Plaintiff informed the school that he had hired
pre-litigation counsel, and requested counsel's presence
at any hearings. (Id. ¶ 39.)
Appeals Committee conducted a hearing on December 4, 2015.
(Id. ¶ 42.) Plaintiff was not permitted to have
counsel present at the hearing, or to call or question any
witnesses. (Id.) Plaintiff was not provided a
comprehensive list of the evidence against him.
(Id.) Plaintiff was permitted to give a statement
regarding the allegations, but was discouraged from doing so.
(Id.) On December 10, 2015, Plaintiff was notified
that the Appeals Committee had upheld his dismissal.
(Id. ¶ 43.) Plaintiff submitted a written
notice of appeal on December 18, 2015; UNCG Graduate School
Dean William Wiener denied Plaintiffs request on January 4,
2016. (Id. ¶¶ 44-45.)
12, 2017, Plaintiff filed a complaint in this Court against
Defendants UNCG, RSNA, Remsburg and Franklin D. Gilliam Jr.
("Defendant Gilliam"), Chancellor of the University
of North Carolina at Greensboro. (See generally, id)
Plaintiff alleges that Defendants Remsburg and Gilliam
(collectively "Individual Defendants") violated his
due process rights by creating and/or overseeing an appeals
process that is inadequate under both the North Carolina and
United States Constitutions. (Id. ¶¶
49-63.) Under Claim One, Plaintiff brings his due process
claim pursuant to 42 U.S.C. § 1983; under Claim Two, he
brings his due process claim pursuant to North Carolina
Constitution Article I, § 19. (Id.) Plaintiff
alleges in Claim Three that by denying Plaintiff reasonable
clinical accommodations, all Defendants violated the
Americans with Disabilities Act ("ADA").
(Id. ¶¶ 64-76.) Finally, Plaintiff alleges
in Claim Four that UNCG and RSNA violated § 504 of the
Rehabilitation Act. (Id. ¶¶ 77-87.)
Plaintiff seeks declaratory judgment and a temporary and
permanent injunction ordering reinstatement in the program.
(Id. at 17.) The Individual Defendants and UNCG move
to dismiss the action pursuant to Federal Rule of Civil
Procedure 12(b)(1), 12(b)(2), 12(b)(6), and 12(b)(7).
(Defs.' Mot. Dismiss, Docket Entry 13 at 1.)
March 1, 2018, the Court held a hearing on Defendants'
motion to dismiss at which defense counsel was present.
(Minute Entry dated 3/1/2018.) The Court had previously
scheduled that hearing for February 21, 2018. (Docket Entry
20.) However, Defendants moved to continue that hearing
(Docket Entry 21); their motion was granted and the hearing
was rescheduled for March 1, 2018 (Text Order dated
1/30/2018). On March 1, 2018, Plaintiffs counsel indicated by
telephone on the record that he had not received notice of
the hearing and was not in a position to attend at that time.
(Hr'g Tr. 9:38:25-9:41:38.) The Court inquired with the
clerk, who determined that Plaintiffs counsel had been given
proper notice through the electronic court filing system. The
Court denied counsel's request for a continuance, but
granted his request for leave to be absent from the hearing
and to stand on the pleadings. (Id., at
initial matter, there are several claims that may be quickly
disposed of by agreement of the parties. First, the
Individual Defendants have moved to dismiss Plaintiffs
state-constitution-based due-process claims. (Defs.' Mem.
Supp. Mot. Dismiss, Docket Entry 14 at 9-10.) Defendants
argue that Plaintiffs state-constitution-based claims are
barred by the Eleventh Amendment, and that Plaintiff did not
lack an adequate state remedy. (Id.) The Court need
not reach these arguments because in his opposition brief,
Plaintiff abandoned these state claims. (Pl.'s Mem. Opp.
Mot. Dismiss, Docket Entry 17 at 6.) Plaintiffs state claims
should therefore be dismissed.
Defendants argue that Plaintiff is not entitled to punitive
damages. (Defs.' Mem. Supp. Mot. Dismiss at 23.) In his
complaint, Plaintiff does not expressly seek either
compensatory or punitive damages. (Compl. at 17.) In his
opposition brief, Plaintiff confirms that he is not seeking
punitive damages (or any damages). (Pl.'s Mem. Opp. Mot.
Dismiss at 13.) Thus, there appears to be no dispute on this
issue. To the extent that the Court might find that
Plaintiffs prayer for "further relief as it deems just
and proper" (Compl. at 17) includes a claim for punitive
damages, any such claim should be dismissed.
Failure to Join a Necessary Party
next argue that Plaintiffs complaint should be dismissed
because he failed to join WakeMed, a necessary party to the
action. (Defs.' Mem. Supp. Mot. Dismiss at 22.) On a
motion under Rule 12(b)(7), the court initially determines
whether the absent party-should be joined as a party in
accordance with the criteria set forth in Rule
19(a). If the court finds that the party is
indeed necessary, the party will be ordered into the action.
When the absent party cannot be joined, the court will
determine, by analyzing the factors described in Rule 19(b),
whether to proceed without the absent party or to dismiss the
action. 7 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1609 (1986). In general,
federal courts are extremely reluctant to grant motions to
dismiss based on nonjoinder, and dismissal will be ordered
only when the defect cannot be cured and serious prejudice or
inefficiency will result. See Provident Tradesmens Bank
& Tr. Co. v. Patterson, 390 U.S. 102, 118 (1968).
Defendants argue that joinder is necessary because if
Plaintiffs injunction is granted, he will have to complete
the remaining clinical courses at WakeMed. (Defs.' Mem.
Supp. Mot. Dismiss at 22.) Plaintiff counters that he can
complete his clinical coursework at Rex Healthcare or Duke
Raleigh Hospital. (Pl.'s Mem. Opp. Mot. Dismiss at 13.)
Defendants reply that joinder of one of the above-named
institutions is therefore necessary. (Defs.' Reply
Pl.'s Mem. Opp. Mot. Dismiss at 12.) At this time, the
court is not persuaded that WakeMed is necessary to a just
adjudication of the issues before the court. Defendants'
motion to dismiss based on Rule 12(b)(7) should therefore be
Subject Matter Jurisdiction and Sovereign Immunity.
the Individual Defendants move to dismiss Plaintiffs §
1983 claim for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) and the Eleventh Amendment. (Defs.' Mem.
Supp. Mot. Dismiss at 7-9.) Rule 12(b)(1) provides for
dismissal where the court lacks jurisdiction over the subject
matter of the lawsuit. Lack of subject-matter jurisdiction
may be raised at any time either by a litigant or the court.
Mansfield, C &L.M.R Co. v. Swan, 111 U.S. 379,
382 (1884). The defense of sovereign immunity is properly
addressed under Rule 12(b)(1). See Anderson v. United
States, 669 F.3d 161, 164 (4th Or. 2011), certified
question answered, 427 Md. 99, 46 A.3d 426 (2012);
if. Smith v. Wash. Metro. Area Transit Auth, 290
F.3d 201, 205 (4th Cir.2002) (citing Williams v. United
States, 50 F.3d 299, 304 (4th Or. 1995)).
to the Eleventh Amendment, sovereign immunity prohibits
actions in federal court by individuals against a state
unless the state has consented to suit or unless Congress has
lawfully abrogated the states' Eleventh Amendment
immunity. Ballenger v. Owens, 352 F.3d 842, 844-45
(4th Cir. 2003). "[U]nder the Eleventh Amendment, a
State cannot be sued directly in its own name regardless of
the relief sought, absent consent or permissible
congressional abrogation." Id. (internal
quotation omitted). The doctrine of sovereign immunity under
the Eleventh Amendment applies not only to actions in which
the State is a named defendant, but also to actions against
its departments, institutions, and agencies. DeMurry v.
N.C. Dep't of Corr., 195 N.C.App. 485, 492-93, 673
S.E.2d 374, 380-81 (2009). Additionally, in North Carolina,
"[a]ctions against officers of the State in their
official capacities are actions against the State for the
purposes of applying the doctrine of [sovereign]
immunity." Green v. Kearney, 203 N.C.App. 260,
268, 690 S.E.2d 755, 762 (2010) (citation omitted); see
also Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d
721, 725 (1998) ("[O]fficial-capacity suits are merely
another way of pleading an action against the governmental
UNCG is a constituent institution of the University of North
Carolina and, as such, UNCG, like the University of North
Carolina, is an agency of the State of North Carolina
entitled to Eleventh Amendment immunity. N.C. G.S. §
116-3-4; Huang v. Bd. Governors Univ. N.C, 902 F.2d
1134, 1138-39 (4th Cir. 1990) (holding that N.C. G.S. §
116-3 does not operate as a waiver of the state's
immunity under U.S. Const., Amend. XI, and the state has not
waived immunity as it applies to the state university
system), reh'g denied, 1990 U.S. App. LEXIS
13966 (4th Cir. June 12, 1990) (en banc); Costello v.
Univ. o/ N.C. at ...